QHYD and Minister for Immigration and Multicultural Affairs (Migration)
[2024] ARTA 273
•12 November 2024
QHYD and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 273 (12 November 2024)
Applicant:QHYD
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/6304
Tribunal:Deputy President Thompson SC
Place:Perth
Date:12 November 2024
Decision:The decision of the delegate of the Minister dated 16 August 2024 not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa under section 501CA(4) is affirmed.
............[SGD].........................................................
Deputy President
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 39 year old citizen of Sudan or South Sudan – extent of impediments if returned to Sudan or South Sudan – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) – sections 15, 189, 196, 197C, 198, 499(1), 499(2A), 501(3), 501(3A), 501(6)(a), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i)-(ii), 501E, 501F, 503
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Schedule 16 Part 5 section 24
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Plaintiff M1/2021 v Minister for Home Affairs (2022)275 CLR 528; [2022] HCA 17
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Australian Government, Department of Foreign Affairs and Trade, ‘South Sudan’, Smarttraveller.gov.au (Web Page, 17 September 2024) < Government, Department of Foreign Affairs and Trade, ‘Sudan’, Smarttraveller.gov.au (Web Page, 21 May 2024) < Regulations 1994 (Cth), part 202
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 5.2, 5.1(2)-(4), 7, 7.2, 8, 8(1), 8.1(1), 8.1.1(1)(a)-(b), 8.1.2(2)(a)-(b), 8.3, 8.4, 8.4(4), 8.5, 8.5(2), 9, 9.1, 9.1.2(2), 9.2, 9.2(1)(a)-(c)
The Australian Concise Oxford Dictionary (2nd ed, 1992), ‘blood-money’ (def 1)
Statement of Reasons
THE APPLICATION
The Applicant has sought review of a decision of a delegate of the Respondent (Minister) dated 16 August 2024, not to revoke the cancellation of his Global Special Humanitarian (Class XB) (subclass 202) visa under section 501CA(4) of the Migration Act 1958 (Cth) (Act).[1]
[1] Exhibit R1, G2.
BACKGROUND
The Applicant is a 39-year-old man who was born as a citizen of Sudan.[2] He arrived in Australia on 18 September 2007 at the age of 22 on an Australian Government-issued ‘Document for travel to Australia’.[3] The Applicant has not left Australia since his arrival.[4]
[2] Exhibit R1, G4, page 119.
[3] Exhibit R1, G4, page 119.
[4] Exhibit R1, G4, page 75.
On 2 August 2011, the Applicant was convicted by the Supreme Court of Western Australia, on a plea of guilty, of manslaughter and sentenced to 12 years imprisonment.[5]
[5] Exhibit R1, G4, page 25.
On 18 May 2020, the Minister cancelled the Applicant’s visa under section 501(3A) of the Act on the basis that the Applicant had a substantial criminal record within the meaning of sections 501(6)(a) and 501(7)(c) and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (Cancellation Decision).[6] The Applicant was notified of the Cancellation Decision by letter of the same date for delivery by hand at Albany Regional Prison.[7] The Applicant is recorded as having signed for receipt of the letter on 27 June 2021,[8] although it is plain from subsequent events that this date must be incorrect.
[6] Exhibit R1, G4, page 42.
[7] Exhibit R1, G4, page 42.
[8] Exhibit R1, G4, page 48.
On 1 June 2020, the Applicant made representations to the Minister requesting revocation of the Cancellation Decision under section 501CA of the Act.[9]
[9] Exhibit R1, G4, pages 49-66.
On 16 August 2024, pursuant to section 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision.[10] The Applicant was notified of the delegate’s decision by letter dated 18 August 2024,[11] which was hand delivered to him at Yongah Hill Immigration Detention Centre on 20 August 2024 (Non-Revocation Decision).[12]
[10] Exhibit R1, G2.
[11] Exhibit R1, G6, page 127.
[12] Exhibit R1, G6, page 136.
The Applicant lodged an application for review of the Non-Revocation Decision with the Administrative Appeals Tribunal (AAT) on 27 August 2024.[13] On 14 October 2024, the new Administrative Review Tribunal (ART) replaced the AAT and all matters which were before the AAT were transferred to the ART[14]. References to the Tribunal in this decision refer to the AAT prior to 14 October 2024, and the ART from that date.
[13] Exhibit R1, G1.
[14] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth), Schedule 16 Part 5 section 24.
THE HEARING AND THE EVIDENCE
The hearing took place in Perth on 23 and 24 October 2024. The Applicant represented himself and was assisted by an interpreter throughout the proceedings. The Minister was represented by Counsel.
The following documents were marked as exhibits:
(a)Documents E, K, and L (Exhibit A1);
(b)Document J2 (Exhibit A2);
(c)Letter dated 8 October 2024 from Mr J of the relevant community association (Exhibit A3);
(d)Email dated 5 October 2024 from a brother of the Applicant (Exhibit A4);
(e)Email dated 5 October 2024 from a sister of the Applicant (Exhibit A5);
(f)Section 501G documents (Exhibit R1);
(g)Tender bundle, excluding page 59 at paragraph [3], pages 67-68, 71-72, and page 219 (Exhibit R2); and
(h)Respondent’s Statement of Facts, Issues and Contentions dated 16 September 2024, excluding paragraph [45] (Exhibit R3).
The Applicant gave evidence and was cross-examined. Both his sister and brother, who had provided emails,[15] and Mr J, who provided a letter,[16] gave evidence and were cross-examined. I found all the witnesses to be serious and truthful in their evidence.
LEGISLATIVE FRAMEWORK
[15] Exhibit A4; Exhibit A5.
[16] Exhibit A3.
Migration Act
Under sections 501(3) and 501(3A) of the Act, the Minister must cancel a person’s visa if he or she is satisfied that the person does not pass the ‘character test’, and the visa-holder is serving a full-time sentence of imprisonment in a custodial institution of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is defined in section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more.
Once a person’s visa is cancelled under section 501(3A) of the Act, the Minister must give them written notice inviting them to make representations about revocation of the original decision.[17] If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that:[18]
(a)the person passes the character test; or
(b)there is another reason why the original decision should be revoked.
[17] Section 501CA(3) of the Act.
[18] Section 501CA(4)(b) of the Act.
That is, to make a decision under section 501CA(4) a decision-maker must first decide whether the person passes the character test under section 501CA(4)(b)(i) and, only if satisfied that the person does not pass that test, decide whether, under section 501CA(4)(b)(ii), there is another reason why the original decision should be revoked.[19]
[19] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 at [66].
Section 499(2A) of the Act mandates that the Tribunal must comply with written directions given by the Minister regarding its functions or the exercise of those powers given to it under section 499(1) of the Act.
Direction no. 110
On 7 June 2024, the Minister issued Direction no. 110 under section 499 of the Act (Direction 110). The direction applies specifically to decisions by the Tribunal on an application for revocation of a mandatory cancellation of a visa under section 501CA.
Direction 110 at [5.2] sets out mandatory principles which
provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.
These principles include the following:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
Direction 110 at [8] sets out the primary considerations which must be taken into account in making a decision under section 501CA(4). These are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged in by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
Direction 110 at [9] sets out the other considerations which the Tribunal must take into account, insofar as they are relevant to an application. These are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Direction 110 at [7] provides that:
(a)information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES
The issues to be determined in this application are:
whether the Applicant passes the character test; and
(b)if not, whether there is another reason why the Cancellation Decision should be revoked.[20]
[20] Section 501CA(4) of the Act.
THE APPLICANT’S CONDUCT AND OFFENDING
On 2 August 2011, the Applicant was convicted by the Supreme Court of Western Australia, on a plea of guilty, of manslaughter and sentenced to 12 years imprisonment.[21]
[21] Exhibit R1, G4, page 25.
Whilst in prison, the Applicant was convicted of the following criminal offences:[22]
(a)on 1 May 2013, one count of ‘assault public officer’ committed on 24 September 2012, resulting in a sentence of one month imprisonment to be served cumulatively;
(b)on 7 June 2013, three counts of ‘assault public officer’ committed on 20 July 2012, resulting in sentences of four months, six months, and 12 months imprisonment respectively, to be served concurrently; and
(c)on 17 September 2020, one count of ‘assault public officer’ committed on 12 July 2020, resulting in a sentence of five months imprisonment, to be served concurrently.
[22] Exhibit R1, G4, pages 24-25; Exhibit R2, TB2, page 36.
ISSUE 1 - DOES THE APPLICANT PASS THE CHARACTER TEST?
In this case, the Applicant fails the character test in section 501(6) of the Act because his manslaughter conviction, and the sentence imposed for it, means he falls within the meaning of section 501(7)(c) having been sentenced to a term of imprisonment of 12 months or more. Therefore, his failure to pass the character test arises as a matter of law.[23]
[23] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
ISSUE 2 - IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The power to revoke the Cancellation Decision will only be enlivened if there is ‘another reason’, within the meaning of section 501CA(4)(b)(ii) of the Act, why it should be revoked. The bulk of the evidence and submissions at the hearing were directed at this issue.
Applicant’s submissions
In his application for review, the Applicant said that ‘the decision is wrong and is not fair’.[24] In his written submissions to the Minister dated 24 December 2023 he says:[25]
[24] Exhibit R1, G1, page 6.
[25] Exhibit R1, G4, pages 121-124; Exhibit A1, documents L and K.
I was born in Sudan, I came to Australia as a refugee for a new life. I have been through a lot of war as I was little in Sudan. And it it still going on now and life is so hard to live.
However I would like to ask the decision makers to forgive me and allow me to stay here in Australia. As I got nowhere to go because if I do go back to Sudan I will be kill [sic] by the victim family.
My family now are in hiding from them and the [sic] left Sudan because of this crime I have done.
Furthermore, it is a rule in Sudan if a victim family when you to be kill [sic] you must be kill [sic] as a result of your crime, no matter what.
I am very remorseful for the crime I have done. But I can not take it back. The victim was my friend from Sudan as well.
And it is really hurting me more than anything in my life. It will stay with me for the rest of my life.
As it is a law in Sudan if you murder someone. You got murder as well by the victim family. I will never go back to Sudan because, my life is in dander as well as family now on the run from victim family.
I believe that I am not a threat to the Australian community it was just an accident. I am a change [sic] man and it will never ever happen. I want to be a good member for the community by doing all the right things as I never have any problem with any one before, in the community. This is my first time. Can you please give me a first chance for my life.
Thank you very much for your time to read this letter. I will be looking forward to hear back from you.
At the hearing, the Applicant said:
(a)he accepted the seriousness of his criminal record, especially the manslaughter, but cannot say anything more about it;
(b)his risk of committing another serious offence is low because he no longer drinks alcohol;
(c)if he lives with his sister, he will accept her rules as she is family, and he will respect her;
(d)he agreed that the expectations of the Australian community are that a person should not be permitted to stay in Australia if they commit a violent crime; and
(e)he fears, as set out in his written materials, that he will be subject to a revenge killing if he is returned to Sudan.
Respondent’s submissions
The Respondent’s submissions were, in summary:[26]
(a)the Applicant does not pass the character test as a matter of law;
(b)the Applicant’s offending is extensive and shows a pattern of increasing violence culminating in manslaughter, which, when combined with the other offences of a serious and violent offences is exceptionally serious, giving rise to a potential for serious risk to the community if he were to reoffend;
(c)the risk of reoffending is high given the Applicant’s unmet treatment needs, his conduct having not been tested in the community and the view of the Prisoners Review Board which imposed a Post Sentence Supervision Order[27] on the Applicant;
(d)the strength of the Applicant’s familial ties should be mitigated by his age on arrival in Australia, the fact he commenced offending shortly after his arrival, and his limited contribution to the Australian community;
(e)the expectations of the Australian community, especially in light of the Applicant’s offending history and the risk of reoffending, should weigh heavily against revocation; and
(f)there would be some emotional hardship for the Applicant and his family if the decision is not revoked, and the Minister accepts there is a health issue, and that the potential of a revenge killing means the consideration of impediments weighs in favour of revocation.
[26] Exhibit R3, pages 4-13.
[27] Exhibit R1, G4, pages 38-41.
Protection of the Australian Community
Direction 110 at [8.1(1)] requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, I am directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[28]
[28] See also Direction 110 at [8(1)].
Criminal history and other conduct
The Applicant’s more recent criminal history is set out at [23]-[24] above. Prior to the manslaughter for which he was convicted in August 2011, he had accumulated a record of offences commencing on 4 February 2008, just seven months after arriving in Australia.
The Applicant’s offences committed prior to the manslaughter[29] are summarised in the table below:[30]
[29] Committed on 10 December 2010: Exhibit R2, TB1, page 33 at [21]
[30] Exhibit R2, TB2, pages 36-40; Exhibit R1, G4, pages 24-26; tabulated in order of offence date.
Offence date Conviction date Offence Sentence 4 February 2008 30 June 2008 Common assault $700 fine 24 April 2008 16 May 2008 Fail to comply with request to give police personal details $200 fine 1 May 2008 4 June 2008 Street drinking $200 fine 1 May 2008 4 June 2008 Give false personal details to police $150 fine 1 May 2008 4 June 2008 Disorderly behaviour in public place $500 fine 14 March 2009 13 October 2009 Fail to comply with request to give police personal details CBO:[31] 12 months
Community work: 60 hours14 March 2009 13 October 2009 Disorderly behaviour in public place $300 fine 14 March 2009 13 October 2009 Criminal damage CBO: 12 months
Community work: 60 hours14 March 2009 28 September 2010 Breach of CBO $100 fine 14 March 2009 28 September 2010 Breach of CBO SIO:[32] 6 months 1 day 14 March 2009 2 August 2011 Breach of SIO Imprisonment: 6 months 1 day 27 March 2009 16 May 2009 Disorderly behaviour in public place $200 fine 01 April 2009 16 May 2009 Breach of bail undertaking $200 fine 16 April 2009 16 May 2009 Breach of bail undertaking $200 fine 29 May 2009 13 October 2009 Improper use of emergency call service CBO: 12 months
Community work: 60 hours29 May 2009 28 September 2010 Breach of CBO SIO: 6 months 1 day 29 May 2009 2 August 2011 Breach of SIO Imprisonment 6 months 1 day 28 August 2009 13 October 2009 Breach of bail undertaking CBO: 12 months
Community work: 60 hours28 August 2009 28 September 2010 Breach of CBO No punishment 5 October 2009 13 October 2009 Breach of bail undertaking CBO: 12 months
Community work: 60 hours5 October 2009 28 September 2010 Breach of CBO No punishment 12 October 2009 13 October 2009 Trespass CBO: 12 months
Community work: 60 hours12 October 2009 13 October 2009 Disorderly behaviour in a police station $300 fine 12 October 2009 28 September 2010 Breach of CBO $200 fine 16 October 2009 28 September 2010 Person who breaches CRO[33]/CBO without reasonable excuse $300 fine (global) 6 February 2010 12 February 2010 Fail to obey order given by an officer $250 fine 29 August 2010 28 September 2010 Carried an article with intent to injure SIO: 6 months 1 day 28 August 2010 2 August 2011 Breach of SIO Imprisonment: 6 months 1 day
[31] Community based order.
[32] Suspended imprisonment order.
[33] Conditional release order, also known as a good behaviour bond.
Nature and seriousness of the conduct
I must consider the nature and seriousness of the Applicant’s criminal offending and other conduct.[34] I am directed that certain types of criminal or other conduct is viewed very seriously by the Government and the Australian community[35] and that certain criminal or other conduct is considered serious[36]. Furthermore, the scope of what I may consider as either very serious or serious, is not limited to those matters specifically included in Direction 110.[37]
[34] Direction 110 at [8.1(1)].
[35] Direction 110 at [8.1.1(1)(a)].
[36] Direction 110 at [8.1.1(1)(b)].
[37] Direction 110 at [8.1.1(1)(a)-(b)].
The crime of manslaughter is self-evidently a very serious crime. In this case, the crime was extremely violent, and was described by the sentencing Judge in the following terms:[38]
It has been a long time since I have had a case before me of this seriousness and my investigation of recent cases in this court, in my view, reveal none which approaches the seriousness of this case.
[38] Exhibit R2, TB1, page 33 at [25].
The Applicant commenced offending shortly after his arrival in Australia. Much of his offending in 2008 and 2009 was low level, however, several offences are clearly more significant. These are:
(a)the May 2009 offence of ‘improper use of emergency call service’, the full details of which are not in evidence before me, but which was described in sentencing remarks of the Supreme Court as involving ‘an enormous number of calls, threatening that you wanted to kill someone and claiming that you had firearms’;[39] and
(b)the August 2010 offence of ‘carried an article with intent to injure’, which resulted in a suspended imprisonment order.[40]
[39] Exhibit R1, G4, page 34 at [26].
[40] Exhibit R2, TB2, page 38.
In addition, whilst in prison the Applicant committed five assaults on prison guards, as detailed at [24] above. The most recent of these assaults was committed in July 2020. These assaults are serious.
It is however notable that the Applicant has not offended for over four years, and has not offended in immigration detention.
In my view, despite his more recent good conduct, having regard to the evidence of his history of offending and the nature of the offences, I have concluded the offending is very serious and weighs heavily against revocation.
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
I must also consider the risk to the Australian community should the Applicant commit further offences.[41] This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct,[42] and an assessment of the likelihood of the Applicant engaging in that type of conduct again.[43] There is no statutory constraint on the way I am to assess that risk, other than the requirement for me to adopt a rational and probative approach to the assessment.[44]
[41] Direction 110 at [8.1.2].
[42] Direction 110 at [8.1.2(2)(a)].
[43] Direction 110 at [8.1.2(2)(b)].
[44] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J.
Nature of the harm
To determine the risk to the Australian community if the Applicant committed further offences or engaged in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should he reoffend.[45]
[45] Direction 110 at [8.1.2(2)(a)].
There are two types of harm which may arise in this Applicant’s case. The first is the potential harm to the community as a whole by his continued failure to abide by the rules or norms of behaviour in Australia. This harm is illustrated by his history of offending by way of, for example, failure to abide by a police direction, disorderly behaviour, breaches of bail undertakings, failures to obey orders given by an officer, breaches of community based orders,[46] and the pattern of conduct breaches whilst in prison.[47] This type of conduct has been more prevalent than the more serious offending, however, it has also been more constant, and more recent with prison conduct matters taking place up until early 2023. Putting aside the incidents recorded by the prison which did not result in any charge or adverse outcome for the Applicant, there remains a pattern of disobedience and failure to respect the rules of the community in which he lives. The harm arising from this conduct is the impost on the community of the costs of dealing with the behaviour, and the negative impact on other community members of his conduct.
[46] Exhibit RB2, TB2, pages 36-40.
[47] Exhibit RB2, TB3, pages 141-148.
Secondly, the Applicant has a history of violent offending including a conviction for one of the most serious offences known to Australian law, manslaughter, committed in quite extraordinary circumstances. Plainly, there is the potential for very serious harm to be done to another person if this type of offending is repeated.
I consider the nature of the harm which may be caused if the Applicant reoffended in a similar manner to his past history, particularly his past violent history, to be very serious.
Likelihood of engaging in further criminal or serious conduct
To determine the risk to the Australian community if the Applicant committed further offences or engaged in other serious conduct, I must also consider the likelihood of him reoffending if he is permitted to remain in the Australian community.[48]
[48] Direction 110 at [8.1.2(2)(b)].
There are no formal risk assessment tools available in relation to the Applicant. However, I have been provided with the Post Sentence Supervision Order (PSSO) made by the Prisoner’s Review Board on 7 December 2023 which contains that Board’s assessment of risk.[49] In deciding to impose the PSSO, the Board noted the Applicant had unmet treatment needs, a significant criminal history with violence suggesting a high risk of reoffending, poor prison conduct, and a lack of protective strategies to reduce the risk to the safety of the community.
[49] Exhibit R1, G4, pages 38-41.
The Applicant’s past offending appears, to some degree, to arise from his issues with alcohol. In his evidence he admitted he had an alcohol problem in the past, and said that he had not drunk alcohol since the manslaughter. He also accepted in giving evidence that he had been found brewing alcohol in prison, but said that he had not drunk the alcohol he had brewed. I accept the truth of what he said, and his genuine desire to avoid alcohol and to reform his life.
There is a second underlying issue which is relevant to his history of offending. This issue is best described in the sentencing remarks of the Supreme Court following the Applicant’s conviction for manslaughter:[50]
5Now, you are a man, as I understand it, of Sudanese origin. You came to this country in 2007 from Uganda. I read the material which relates to your history, particularly as it is set out in the pre-sentence report, and I understand that it may well be the case that your exposure to terrible, terrible circumstances in Sudan and Uganda have led you to accept that a culture of extreme violence is in some respects a normal way to behave.
6I am surmising that you have much to learn about how to lead a law-abiding way of life, much to learn about the fact that you do not, almost instinctively, at every opportunity have to present yourself as a hard man who is dangerous and who can be in a position to keep themselves safe by demonstrating in a haphazard way to others what harm you may do them.
7It is not an attitude which has any relevance to living here in Western Australia in the 21st century, but I understand that that culture of terrible violence to which you have been exposed may have affected your way of looking at what is normal behaviour.
[50] Exhibit R1, G4, pages 32-33.
The fact of the violent society in which the Applicant grew up is set out in his written submissions[51] and was something which was raised by both his sister and his brother in their evidence. Both described the likelihood that if the Applicant is returned to South Sudan, or Sudan, he would be killed by the family of the victim of the manslaughter crime, as retribution for his crime. That is, their evidence was that violent revenge is a cultural aspect of the society from which they have come. This was independently corroborated by the evidence of Mr J, a leader in the relevant community in Western Australia.[52]
[51] Exhibit R1, G4, pages 112-118.
[52] Exhibit A3.
During his imprisonment, the Applicant undertook a Violent Offender Treatment Program which resulted in a Program Completion Report[53] being prepared. Whilst acknowledging the Applicant had attended and completed the program, the summary and recommendations of that report are concerning in the context of the likelihood of him committing further offences. In particular, the author says:[54]
. . . His identified treatment needs were: Emotions and Cognitions, Anti-Social Peers, Propensity for Violence and Alcohol Use.
[The Applicant’s] propensity to violence is closely link [sic] to his emotions and cognitions, particularly in relation to his anti-authoritarian rigid thinking. When discussing his use of violence in the program he demonstrated limited capacity to consider other options and tended to value and glorifies [sic] a gangster-type lifestyle, being involved in fighting and gambling, in conjunction with a culture of heavy drinking and drug taking. [The Applicant’s] rigid thinking and attitudes towards authority appeared to be an area within his life that he felt proud of and facilitators are unsure as to his intentions to change in this area. He also expressed hostility towards Australia and Australian Law and expressed his loyalty towards the beliefs surrounding his cultural [sic] that he holds.
In regards to treatment gains [the Applicant] did develop awareness that his angry thoughts lead him to violent behaviour. He also admitted that he needed to change his peers and associations in order to change his lifestyle. He made some acknowledgements in relation to the effects his culture and early exposure to violence have had on his behaviour and that he does not want to continue with a violent lifestyle. He was also able to link his use of alcohol as a contributing factor to his violent offending. These acknowledgements are yet to be applied and tested in high risk situations and community settings.
[The Applicant’s] anger and aggressive behaviour patterns appear to have only shifted slightly during his participation within the program. He also appears to strongly value his culture and describes his use of violence as related to his culture and the way he was raised. Given his barriers with literacy it is difficult to determine whether he was able to develop and retain skills in the areas of checking his thoughts, and countering his negative beliefs. Furthermore it is difficult to conclude if he has made relevant gains that would impact on the factors which have been assessed as relevant to his risk to the community by his participation in the program.
(Emphasis added)
[53] Exhibit R2, TB3, pages 133-140.
[54] Exhibit R2, TB3, page 139.
I infer that the unmet treatment needs referred to in the PSSO are those identified in the Program Completion Report, particularly in respect to violence.
Since moving to immigration detention, the Applicant has been unable to access treatment, so that at the time of making my decision, his treatment needs continue to be unmet. Nor has he spent time in the wider community since release from prison.
His behaviour in immigration detention has been positive. He is described as ‘respectful towards officers’,[55] keeps himself and his room clean and tidy,[56] and regularly engaged in activities, including playing soccer.[57] There are no incidents of poor behaviour.
[55] Exhibit R2, TB4, page 217 (example only, this comment appears regularly throughout TB4).
[56] Exhibit R2, TB4, page 262 (example only, this comment appears regularly throughout TB4).
[57] Exhibit R2, TB4, page 284 (example only, this comment appears regularly throughout TB4).
Since 2020, whilst in prison and in detention, the Applicant has increasingly demonstrated an improvement in his behaviour, the capacity to regulate his emotions, and a commitment to moving away from violence. During his incarceration he undertook a series of courses[58] including learning to read and write English, cooking and hospitality courses, emotional development and personal development courses, and an Addiction Offending Program, all of which would have added to his ability to understand his past behaviour and provide a foundation for life in the wider community. The work he has done and the change in his behaviour is commendable. However, it remains the case that he has been unable to access any further treatment for his violent tendencies, and his responses to situations where he may have resorted to violence in the past, are untested in the wider community. Whilst I do not doubt the Applicant’s genuine commitment to change his life, I am unwilling to rely on that untested commitment alone.
[58] Exhibit R1, G4, pages 67-74.
In my view, the likelihood of the Applicant engaging in further criminal or serious conduct is high.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s conduct, and the risk to the Australian community should he commit further offences or engage in other similar conduct, I have concluded that that this consideration weighs heavily against revocation. This consideration should be given strong weight.
Family violence
There is no evidence of family violence, consequently this consideration carries neutral weight.
Strength, nature and duration of the Applicant’s ties to Australia
In accordance with [8.3] of Direction 110, I must also consider the strength, nature and duration of the Applicant’s ties to Australia.
The Applicant arrived in Australia in 2007, with his sister, as a 22 year old adult. Prior to his arrival he had been living for the majority of his life in a refugee camp in Uganda, where he had fled with his sister as a child from his birthplace of Sudan. In his oral evidence he told the Tribunal he was a very young child when he fled Sudan.[59] After the Applicant came to Australia the civil war in Sudan resulted in the creation of two states, Sudan and South Sudan, and there remains ambiguity as to whether he is now a citizen of Sudan or South Sudan.
[59] Transcript, page 30.
The Applicant has several siblings in Australia,[60] two of whom have become Australian citizens. His sister, with whom he came to Australia in 2007, lives in Perth. She has a 13 year old son (Nephew A), works as a school cleaner, and is prepared for her brother to live in her home, having already cleared this with her landlord. She explained that in her culture it is common for adult family members to share a home.
[60] Exhibit R1, G4, page 61.
The Applicant’s sister and Nephew A regularly visited the Applicant in prison,[61] and he maintains regular contact with them by telephone.[62] Given her work schedule and the distance to the immigration detention facility, it is difficult for his sister to visit him in detention.
[61] Exhibit R2, TB3, pages 164-171.
[62] Exhibit R2, TB4, page 274 (example only).
The Applicant’s brother lives in Melbourne and has multiple sons aged 19 years and younger. He works for a logistics business and owns his home in Melbourne. The brother said that he intended to come to Perth to visit the Applicant, as he had done whilst the Applicant was in prison. He told me that his three eldest sons, born in 2005, 2007 and 2009, have met the Applicant, but the younger ones were born whilst the Applicant was in prison and so have not met the Applicant. The Applicant and his brother maintain contact by telephone now that the Applicant is in immigration detention.
There is also evidence of a wider family network of relatives in Australia,[63] including evidence of their visits to him whilst he was in prison.[64]
[63] Exhibit R1, G4, page 61.
[64] Exhibit R2, TB3, pages 164-171.
Mr J gave evidence that the Applicant had been involved in the Sudanese community by volunteering and engaging in community activities prior to his imprisonment. He also explained some of the community services and programs available to the 5,000 members of the Perth based community, including a men’s group which has a focus on anger management and harm minimisation. He gave evidence that the community was currently supporting other people who had been in prison, and he had visited Sudanese men in prison, including the Applicant. He explained the various programs the community organised and activities which were offered to men as a means of connecting with others in the community. He also gave evidence of external assistance programs and providers the community organised to assist their members and confirmed that the community was willing to support and assist the Applicant.
In considering the strength of the Applicant’s ties to Australia I am directed by Direction 110 at [8.3]. I must give appropriate weight to the fact that the Applicant commenced offending shortly after he arrived in Australia, and the fact that he arrived as an adult. Against that however is the fact that he arrived after having spent many years in a refugee camp and, as Justice Murray said in his sentencing remarks:[65]
… [the Applicant’s] exposure to terrible, terrible circumstances in Sudan and Uganda have led you to accept that a culture of extreme violence is in some respects a normal way to behave.
[65] Exhibit R2, TB1, page 30 at [5].
Plainly, he has strong support from his immediate family members and has access to a large wider community, with support programs and mentoring provided, in an environment which appears focused on its members taking positive steps in their life in Australia.
Overall, I conclude that the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
I must also consider the best interests of the minor children in Australia affected by the decision.[66] These children are:
(a)Nephew A, the 13 year old son of the Applicant’s sister;
(b)Nephews B and C, the two minor sons of the Applicant’s brother who have met the Applicant;[67] and
(c)Nephews D, E and F, the other minor sons of the Applicant’s brother who have not met the Applicant.[68]
[66] Direction 110 at [8.4].
[67] Transcript, page 72.
[68] Transcript, page 72.
There is mention in the written evidence of a daughter[69] who was said to be aged 12 in 2016, making her an adult now. I have no further evidence about her, and do not consider her interests. I also exclude the eldest son of the Applicant’s brother, who was born in 2005 and is an adult.[70]
[69] Exhibit R2, TB3, pages 128-129.
[70] Transcript, page 72.
In considering those matters set out in Direction 110 at [8.4(4)], I am constrained by the very limited evidence on which to base my assessment.[71] My findings are:
[71] This is not intended as a criticism. In circumstances where they had limited contact with their uncle, I would be unlikely to be assisted by any evidence they might provide.
(a)the Applicant maintains a relationship with Nephew A, through regular telephone contact and the visits during the Applicant’s imprisonment;
(b)the Applicant’s sister is supportive of the relationship with Nephew A developing and intends the Applicant to live with her and her son in their two bedroom home;
(c)Nephews B and C have met the Applicant prior to his imprisonment;
(d)Nephews D, E and F have not met the applicant;
(e)the strong focus of the Applicant’s brother and sister in their commitment to supporting the Applicant suggests they will ensure that all the nephews develop a relationship with the Applicant;
(f)none of the nephews appear likely to develop a relationship of a parental nature with the Applicant as they clearly have strong parental influences already, but the cultural bonds of family are strong in the Sudanese / South Sudanese community and there is no reason to suspect the relationships will not develop positively;
(g)there is no evidence of any negative impact, trauma or risk to any of the nephews by reason of the Applicant’s conduct or potential future conduct;
(h)given the Applicant has been in prison for most or all of the lives of the nephews, there is likely to be only limited impact from separation for a longer period, although the telephone contact could be maintained and developed further; and
(i)whilst there is no evidence of any impact on the nephews from the Applicant’s prior conduct, my impression from his sister, his brother and Mr J’s, is that the conduct will not be condoned or glorified, but rather used as a lesson for the nephews.
I find that the best interests of the nephews, and in particular Nephew A, are in favour of revocation. Overall, this consideration weighs moderately in favour of the Cancellation Decision being revoked.
Expectations of the Australian Community
I am required to consider the expectations of the Australian community as set out in Direction 110 at [8.5]. The consideration of this question, as with the others, is done against the background of the principles set out in Direction 110 at [5.2] and specifically in this case those matters set out in [5.2(2)-(4)].
The Applicant committed the very serious offence of manslaughter and has also committed five assaults against prison officers during his incarceration. Paragraph 8.5(2) of Direction 110 makes it plain that the offences the Applicant has committed are of a type which would lead the Australian community to expect that he is not permitted to remain in Australia.
I have dealt with the risk to the community if the Applicant were to reoffend earlier in my reasons. I came to the view that the Applicant poses a risk of harm to the Australian community given his unmet treatment needs regarding violence, and the lack of opportunity to put his good intentions into practice in the community.
In my view, the safety of the Australian community is of paramount importance in this decision. I therefore find that the expectations of the Australian community weighs heavily against revocation in this case. This consideration should be given strong weight.
Other considerations – Direction 110 at [9]
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[72]
[72] Direction 110 at [9.1].
This consideration also makes reference to the range of legal consequences of a decision not to revoke the Cancellation Decision. These legal consequences include:
(a)the Applicant’s unlawful status;
(b)becoming subject to detention and/or removal, pursuant to sections 189, 196, 197C and 198 of the Act;
(c)the refusal of other visa applications and cancellation of other visas, pursuant to section 501F of the Act;
(d)a prohibition on applying for other visas, pursuant to section 501E of the Act; and
(e)periods of exclusion and special return criteria may apply, pursuant to section 503 and special return criteria 5001 of the Act.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[73] Under section 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198.[74] The Applicant is currently in immigration detention.
[73] Section 15 of the Act.
[74] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 at [112]-[122]; to find the applicant’s detention had at all times been lawful.
There has been no protection finding made in relation to the Applicant,[75] and he said in his evidence that he had not applied for a protection visa, at the time of the hearing.
[75] The criteria for the grant of a subclass 202 visa, if satisfied, do not result in a protection finding: see generally part 202 of schedule 2 to the Migration Regulations 1994 (Cth) and section 197C of the Act.
The Applicant said in his application that if he were to return to Sudan or South Sudan, he feared he would be killed by the family of the victim of his manslaughter offence.[76] His sister, his brother and Mr J also gave similar evidence,[77] citing the cultural practice of revenge as the foundation of the fear. The Applicant’s brother explained in his oral evidence the practice and the circumstances of this, as it relates to the Applicant:[78]
(a)in Sudan and South Sudan there is no difference between murder and manslaughter;
(b)Sudan and South Sudan are lawless countries;
(c)in both countries there is a cultural practice whereby a murder victim’s family is entitled to be paid for the death of their family member, or the person who killed the victim is subject to revenge killing;
(d)the price to be paid for the death of the victim is 51 cows, worth $700US each, which I have calculated to be in the order of $55,000AUD; and
(e)there are family members of the victim of the Applicant’s crime residing in Perth and Melbourne who are aware of where the Applicant is and who will become aware, through the community, of him being deported, and who will be able to tell family remaining in Sudan and South Sudan if the Applicant returns, so that the revenge killing could take place.
[76] Exhibit R1, G4, pages 61 and 65; Exhibit A1.
[77] Exhibit A3; Exhibit A4; Exhibit A5.
[78] Transcript, pages 71-74.
I have no doubt about the genuineness of the concerns expressed by the Applicant and the three other witnesses.
The Applicant is able to make an application for a protection visa, at which stage his claims under Australia’s protection obligations can be properly made and comprehensively assessed,[79] and before any character concerns are considered.[80] I will not speculate as to whether a protection claim will be successful,[81] however it remains open to the Applicant to apply for a protection visa even despite the fact I have found that his application for revocation of the Cancellation Decision is unsuccessful.
[79] Plaintiff M1/2021 v Minister for Home Affairs (2022)275 CLR 528; [2022] HCA 17 at [30].
[80] Direction 110 at [9.1.2(2)].
[81] RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32].
I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of section 501, but I am conscious that those intended consequences may result in a very harsh outcome for this Applicant.
I find that this consideration carries significant weight in favour of revocation of the Cancellation Decision. This consideration should be given moderate weight overall.
Extent of impediments the Applicant would face if removed
Direction 110 at [9.2] provides that, taking into account the matters identified at [9.2(1)(a)-(c)] of Direction 110, I must consider the extent to which the Applicant would face any impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified at [9.2(1)(a)-(c)] are:
the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in their country.
The applicant is 39 years old and has asthma for which he takes daily medication. He is otherwise in good health. He was unsure if he would be able to access his asthma medication if returned to Sudan or South Sudan.[82]
[82] Transcript, page 30.
There is unlikely to be a language barrier faced by the Applicant on return as he speaks both Dinka and Arabic.[83]
[83] Transcript, page 49.
The social and cultural barriers the Applicant will face are more complex. The Applicant spent most of his time prior to coming to Australia at the age of 22 in a refugee camp in Uganda. He has several sisters residing in Uganda, but no family in Sudan or South Sudan. There is no evidence of any social or economic support available to the Applicant in either Sudan or South Sudan.
South Sudan is lawless[84] with the latest advice from Smartraveller saying:[85]
We continue to advise do not travel to South Sudan, including Juba, due to the dangerous security situation and the threat of violence and armed conflict. The security situation is volatile and could deteriorate rapidly with little or no notice.
[84] Transcript, page 62.
[85] Australian Government, Department of Foreign Affairs and Trade, ‘South Sudan’, Smarttraveller.gov.au (Web Page, 17 September 2024) <>
Similar advice is given by Smartraveller in respect to Sudan,[86] and Mr J described it as lawless in his evidence.[87] The Applicant described the extraordinary history of the war and its effect on the community and the people in his submissions to the Minister.[88]
[86] Australian Government, Department of Foreign Affairs and Trade, ‘Sudan’, Smarttraveller.gov.au (Web Page, 21 May 2024) < Exhibit A3.
[88] Exhibit R1, G4, pages 112-118.
There is no evidence on which I can make any definitive finding in respect to the Applicant’s ability to maintain a standard of living. I accept it is a standard of living that is commensurate with his fellow citizens of South Sudan or Sudan, and I note that the security situation in both countries likely means that there will be substantial impediments to obtaining work and maintaining any decent a standard of living, however those are impediments faced by all people living in Sudan or South Sudan and are not specific to the Applicant.
The most significant cultural impediment the Applicant would face is the possibility of revenge killing, which I have set out at [48] and [79] above. Given it is a cultural practice it is appropriate to take it into consideration in assessing the impediments the Applicant may face on return.
I do not accept the Minister’s suggestion in cross-examination that arrangements could be made by the Applicant’s family to pay the 51 cows or their equivalent in cash. To make this payment would amount to the payment of blood money.[89]
[89] The Australian Concise Oxford Dictionary (2nd ed, 1992) ‘blood-money’ (def 1).
The practice of revenge killing is a matter of considerable concern in my decision making and the evidence is sufficient for me to conclude that the potential for this to occur is real. This is a substantial cultural impediment to the Applicant returning to either Sudan or South Sudan.
I find that the extent of impediments the Applicant would face if removed weighs in favour of revocation and significant weight is afforded to this consideration in the Applicant’s circumstances.
Impact on Australian business interests
There is no evidence that any business interests would be affected by this decision, consequently this consideration carries neutral weight.
CONCLUSION
I have found the Applicant does not pass the character test under section 501 of the Act.
I have therefore considered if there is another reason why the Cancellation Decision should be revoked, having regard to the considerations set out in Direction 110, and weighing the various considerations in accordance with [7] of the Direction, and in accordance with the authorities which bind my decision making. [90]
[90] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
In determining the weight to be applied to each individual consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and according to the guidance provided by Direction 110.
Of the primary considerations, I find:
(a)the protection of the Australian Community and the expectations of the Australian community both weigh heavily against revocation, and both should be accorded strong overall weight;
(b)the Applicant’s ties to Australia weigh strongly in favour of revocation, and should be given moderate overall weight;
(c)family violence is not relevant to my decision and therefore carries neutral weight; and
(d)the best interests of the children identified as being impacted by the decision weighs moderately in favour of revocation and should be given moderate weight overall.
In relation to those other considerations which are relevant to this case, I find:
(a)the legal consequences of the decision weighs significantly in favour of revocation and should be afforded moderate weight in the Applicant’s case;
(b)the extent of impediments if removed weigh significantly in favour of revoking the cancellation of the Applicant’s visa; and
(c)the impact on Australian businesses is not relevant to my decision and therefore carries neutral weight.
Direction 110 at [7(2)] says that primary considerations should generally be given greater weight than the other considerations. It also provides that the protection of the Australian community is generally to be given greater weight than the other primary considerations, which is a principle that I find should apply in this case.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, I conclude that the primary considerations of protection of the Australian community and the expectations of the Australian community outweigh those primary considerations which weigh in favour of revocation, being the strength, nature and duration of ties to Australia, and the best interests of minor children, and the other considerations of the legal consequences of non-revocation and the extent of impediments if the Applicant is removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction 110, I am not satisfied that there is another reason why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 16 August 2024 not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa under section 501CA(4) is affirmed.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Thompson SC
..........[SGD]..............................................................
Associate
Dated: 12 November 2024
Date of hearing: 23 and 24 October 2024 Applicant: Self-represented Counsel for the Respondent: Mr Tom Lettenmaier
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